DECISION AND JUDGMENT
to Rule 80C of the Maine Rules of Civil Procedure, Petitioner
Robert Hudson has appealed from a decision of the Board of
Trustees [_"~Board"~] of the Maine Public
Employees Retirement System ("MPERS") denying his
application for disability retirement benefits. The parties
have filed briefs and the administrative record.
Clerk scheduled the appeal for oral argument to be held
September 6, 2016 on the understanding that counsel were
requesting it, but on the morning of September 6, the court
was advised that counsel were prepared to waive oral argument
if the court agreed. Accordingly, the case is decided on the
basis of the parties' briefs and the record.
reasons set forth below, the court affirms the Board's
decision, denies the appeal and grants judgment to the
Employment and Medical History
Robert Hudson is 54 years old and lives in Raymond, Maine.
(R. at 38.6). Mr. Hudson was employed by the Maine Department
of Corrections (MDOC) from 1991 to 2012, most recently as a
Correctional Trades Supervisor. (R. at 38.6.)
State employee, Mr. Hudson was a member of the State Employee
and Teachers Retirement Program. See 5 M.R.S. §
17651 (all State employees and teachers mandated to be
members of the State Employees and Teachers Retirement
Program as a condition of employment).
Hudson's job as a Correctional Trades Supervisor entailed
training, supervising and assisting inmates involved in
various work situations, as well as assessing the quality of
the work being performed. (R. at 38.6). Furthermore, the job
required Mr. Hudson to spend three to four hours driving per
day, sometimes with inmates in the car with him. (R. 38.6.)
In that position, Mr. Hudson was expected to respond to
emergency situations that might involve restraining inmates.
(R. at 38.6.) Mr. Hudson was considered a "very good
employee and a very hard worker" by his supervisor.
April of 2008, Mr. Hudson told his primary care physician,
Carl Schuler, D.O., that he was experiencing
"spells" during which he would lose his train of
thought and get confused. (R. at 38.7.) Mr. Hudson reported
that these spells were happening three to four times per year
and seemed to be getting worse. (R. at 38.7.) Dr. Schuler
believed that these spells might have been migraines or
seizures and ordered a CAT scan and referred Mr. Hudson to
Maine Neurology. (R. at 38.7.) On April 23, 2008, Georgann
Dickey, MS, ANP, at Maine Neurology, diagnosed Mr. Hudson
with "transient alteration of awareness, " and
noted that his symptoms "do not neatly fit into
diagnostic criteria for migraine aura, seizures or
ischemia." (R. at 38.7.)
2008 until his episode in 2012, there was no mention of Mr.
Hudson's spells in his medical records. Mr. Hudson
acknowledges that his health care providers never put
restrictions on his employment as a result of the spells. (R.
15.107). Mr. Hudson did not request any accommodation while
employed by the MDOC. (R. at 38.7.)
26, 2012, Mr. Hudson became confused and exhibited odd
behavior at work. (R at 4.67, 4.86, 4.164, 38.7). He was
taken to the emergency room at Maine Medical Center, where
Megan Selvitelli, M.D. found that Mr. Hudson's
"history is suggestive of-a focal onset seizure with
secondary generalization, likely due to the demonstrated left
frontal meningioma, " i.e. that his symptoms were
associated with what proved to be a benign tumor of the
brain. (R. at 38.7.) Mr. Hudson was prescribed Keppra, an
anticonvulsant, and told not to drive until he had three
months without any seizures, or if he chose not to take the
anticonvulsant, for six months of "seizure
freedom". (R at 4.136-38, 38.7.) Mr. Hudson left the
emergency room against medical advice. (R at 38.7.)
10, 2012, Mr. Hudson reported to Patricia Seely, NP-C, at
Maine Neurology that he was experiencing excessive
sleepiness, dark moods and severe lapses in memory, and was
concerned that he would not he able to work while taking
Keppra. On July 12, 2012, Ms. Seely ordered Mr. Hudson
"out of work until further notice, " and advised
that Mr. Hudson "is unable to drive and requires further
testing and medical treatment at this time." (R. at
Hudson's last day of work was June 25, 2012, and his last
date in service was July 17, 2012, when he went on unpaid
leave. (R. at 38.6). His employment was terminated on
September 8, 2013. (R. at 38.6).
August 1, 2012, Mr. Hudson's medication was changed from
Keppra to Trileptal. On August 3, 2012, two days after the
medication change, Mr. Hudson experienced a "seizure
cluster". (R. at 38.8.) According to Mr. Hudson's
later testimony, the seizures on August 3, 2012, were the
last he experienced. (R. at 15.76-77). On August 7, 2012, Dr.
Selvitelli noted that Mr. Hudson switched back to taking
Keppra. (R. at 38.8.) On September 18, 2012, Mr. Hudson saw
Jason Aucoin, RN, ANP-C, a certified adult nurse practitioner
in Dr. Selvitelli's office at Maine Neurology who
assessed Mr. Hudson to have generalized convulsive epilepsy.
(R. at 38.8.) Nurse practitioner Aucoin noted that the
meningioma was unlikely to increase in size and that as long
as the anticonvulsants are effective in controlling Mr.
Hudson's seizures, Mr. Hudson "should not have
complications" with regards to the meningioma. (R. at
notes from the same visit, nurse practitioner Aucoin stated
that since switching back to the Keppra, Mr. Hudson has not
had any additional seizures. Mr. Hudson reported that he was
"doing well on the Keppra with much less side
effects" and "that he feels almost normal now on
the Keppra."(R. at 9.53, 38.8.)
record contains a note from Dr. Selvitelli indicating that
Mr. Hudson had reported experiencing a seizure October 8,
2012, and placing him on a driving restriction until January
2013. (R at 9.63).
January 28, 2013, Dr. Selvitelli noted that Mr. Hudson
continued to report "possible seizures" and
discussed transitioning to an alternative anticonvulsant,
which Mr. Hudson declined. (R. at 9.56, 38.8.)
However, notes from Mr. Hudson's April 2, 2013
appointment with nurse practitioner Aucoin state that Mr.
Hudson's "last known seizure" was when he
transitioned off Keppra in 2012, and that Mr. Hudson's
reported symptoms were more consistent with a depression
diagnosis than with seizures. (R. at 9.58, 38.8).
Hudson saw Amy McAuliffe, Ph.D., a psychiatric nurse
practitioner with the Department of Veteran's Affairs on
February 27, 2013. She noted that Mr. Hudson "continues
to experience profound disabling symptoms of major depression
and generalized anxiety disorder versus PTSD" and that
"Mr. Hudson experiences "severe depression and
anxiety with phobic avoidance of driving;" (R. at 38.8.)
As a result of conducting a psychiatric evaluation of Mr.
Hudson on March 27, 2013, Dr. McAuliffe diagnosed Mr. Hudson
with "Major Depression, mod-sev vs. Organic Mood
Disorder." (R. at 38.8.) Dr. McAuliffe noted that the
location of Mr. Hudson's meningioma, in the left
frontotemporal region, "can certainly be associated with
such symptoms of affect dysregulation and
unpredictability" that Mr. Hudson was experiencing and
that there was a "specific precipitant to ...